The Right to Roam: Balancing Private Property and Public Access - Essay Example

?The Right to Roam: Balancing Private Property and Public Access Introduction The right to roam which is a sta y right in England and implies that no individual may make an absolute claim to private ownership of mountainous terrain or parts of the country.1 The right to roam and various statutes provides for public access to private property irrespective of the property owner’s claim to his or her property under traditional theories of private ownership. Moreover, the exclusivity typically attending private ownership is protected by Article 1 of Protocol 1and Article 8 of the European Convention on Human Rights, 1950 which became a part of the law of England by virtue of the Human Rights Act 1998. However there are caveats to both provisions which are reflected in a number of statutes in England. This paper examines the juxtaposition between the exclusivity of private property claims facilitated by Articles 1 Protocol 1 and 8 of the ECHR and the social propriety of public access to private property via the statutory right to roam. An examination of the right to roam under English law demonstrates the extent to which the private claims are limited by public policy considerations. A further look at other sources of law in Europe permitting the right to roam exemplifies the pull of public policy considerations and the limits of Article 8 and Article 1, Protocol 1 of ECHR. Theories of Private Property and the ECHR It is generally argued that the owner has complete control over the res with the exclusive right to exclude all others.2 On the other hand it is argued, that private property ownership is not “absolute” and “involves trade-offs with community values and egalitarian goals”.3 Thus the concept of a bundle of sticks is viewed as an interface between the various values and goals. It can be argued that Articles 8 and 1 of Protocol of the ECHR reflect this latter theory of private property ownership. Article 8 of the ECHR provides that “everyone has the right to respect for his private and family life, his home and his correspondence”.4 Article 8 also states that public officials shall not interfere may only interfere with that right pursuant to law and if it is “necessary in a democratic society”.5 Article 1, Protocol 1 of the ECHR makes provision for the right to “peaceful enjoyment” of one’s “possessions”.6 Article 1 Protocol 1also provide thats “no one shall be deprived of his possessions” unless such deprivation is “in the public interest and subject to the conditions provided for by law and the by the principles of international law.”7 Article 1 of Protocol 1also provides that the state is entitled to make laws “necessary to control the use of property” in “the general interest”8 In Marckz v Belgium it was held that the right to do as one likes with one’s property is a conventional and basic component of property rights.9 However, Article 1 of Protocol 1 recognizes but limits the extent to which the state may interfere in the right to property. Interference must not be arbitrary and although Article 1 of Protocol 1 does not speak to compensation, when the state does interfere in property rights, there must be compensation.10 Compensation is only necessary in instances where interference in the property amounts to taking the property and even then, full compensation is not altogether guaranteed.11 For instance in Baner v Sweden, admitting the public access to private waters for fishing activities did not amount to deprivation of the right to peaceful enjoyment of one’s possessions.12 Thus Article 1, Protocol 1 of ECHR conveys upon the state a broad authority relative to the determination of the public interest in issue.13 It was ruled in Neimetz v Germany that the primary purpose of Article 8 is to ensure that individuals are protected against public officials’ arbitrary interference.14 First is must first be determined whether or not interference is justified by virtue of Article 8(2). In ascertaining whether or not interference was justified is it necessary to determine whether or not the interference was conducted according to the law. Did it have a legitimate goal? Was it necessary in a democratic society? Finally, the court must be satisfied that the interference was necessary in a democratic society.15 Questions necessarily arise over the term of ownership, the rights of others and the wider interests of society.16 For instance, exclusive ownership to private property without exception and limitations could create injustices. Section 31(1) of the Highways Act 1980 seeks to cure one such injustice. Section 31(1) provides that where the public has enjoyed “a way over land” for 20 years “without interruption” the way is regarded as having been “dedicated as a highway unless there is sufficient evidence that there is no intention during that period to dedicate it.”17 The House of Lords ruled that an objective test is applied to an interpretation of Section 31(1) relative to ascertaining the property owner’s intention. The question is whether or not, a reasonable user would have come to the conclusion that the owner’s conduct over the years indicated that the owner intended that a public highway was created.18 If an owner of property had exclusive claims to private property, the owner would be at liberty to allow access to a right of way over his or her property without interference for as long as he or she liked, and then without warning, interfere with what appears to be a well-established right to public access. The Right to Roam It is generally accepted that the state has the authority of eminent domain by which states may obtain interests in land against a private citizen for advancement of the public interest.19 In this regard, Rich J defined eminent domain as “the proprietary aspect of sovereignty”.20 Murphy J also described eminent domain as a “necessary” function of the state.21 Without eminent domain, modern states would not have the necessary authority to organize the “essential infrastructure of contemporary life”.22 Urban planning, water resources, communications and an exhaustive list of the exigencies of contemporary life have been and continue to be facilitated under the auspices of eminent domain.23 For the most part, the modern state’s exercise of the powers of eminent domain usually involves imposing “substantial community-oriented restrictions upon the free enjoyment of estate ownership” as opposed to the “the outright acquisition of a freehold or leasehold estate in land”.24 As Lord Radcliffe observed, when the government imposes restrictions on the property owner’s free enjoyment of his or her land, the land owner suffers a degree of “injurious affection” rather than expropriation of his or her land.25 More recently, there has been a growing tendency to emphasise the significance of enlarging the right of access by the public to “recreational land” and enhancing the opportunities for leisure activities in order to improve “community health” and to promote “social equity”.26 The right to roam has therefore gained currency in much of Europe and more recently in the UK.27 The right to roam in the context of private property and public ownership encompasses the right of the public to access to mountains, hills, beaches, coastal areas (inclusive of dunes, flats and cliffs). The aim is to balance the rights of owners against hikers and ramblers.28 According to Hougie and Dickinson, the right to roam has had a “long and tortuous history” in England and Wales, but has been a part of most of Europe’s “social tradition”.29 In England and Wales, values in society are typically aligned with ideas relative to property ownership and thus there has been significant hesitancy with embracing the right to roam. However, the right to roam policies were quickly developed following the Labour government’s election to office in 1997.30 Aside from the social status paradigm, the right to roam has an uneasy existence in the UK because it effects the value of the land to which the right to roam is attached. As Smith said, when a right to roam is granted to the public or even to an owner or occupier of adjourning property, the landowner is limited in what he or she may do with their property. For instance, they may not be able to use it for agricultural purposes or they may be unable to freely enjoy quiet time on their own property.31 The Ramblers Association which was formed in 1932 has campaigned for years for the right to roam the “open countryside, even if it is privately owned.”32 The Countryside Alliance which emerged in the 1990s took the position that the right to roam was the state’s assault on their “way of life” and “civil liberties”.33 From the perspective of the Countryside Alliance, farmers and country dwellers generally needed the right to roam “across uncultivated land”.34 However, the Countryside Alliance was against the effects of globalization on the countryside and perceived the public’s right to roam as an extension of or symptom of globalization and capitalism.35 By the 1990s however, the right to roam had become a significant issue in the UK and the public momentum appeared to be heavily in favour of legislative intervention geared toward the right to roam. The Ramblers’ Association put together large campaigns in which countryside occupations were organized. In much of Europe, the public enjoy wide rights to of access to some privately owned properties and UK citizens began questioning why similar rights were denied them.36 By 1994, the Labour Party, although out of office by that time, earmarked the right of the public to access the countryside a platform issue. Therefore, when the Labour Party took office in 1997, the public anticipated that some action would be forthcoming relative to access by the public to the countryside. Thus, in 1998 the Labour government issued a Consultation Paper seeking popular opinion on how to go about providing public access to the countryside with an emphasis on mountains, moors, downs, heaths and registered common land.37 The Consultation Paper which intended to receive input relative to how best to provide public access to the countryside, did not adopt a particular stance and left the debate open to proposals for adopting either voluntary access or statutory access.38 The Consultation Paper 1998 essentially suggested that any proposal put forth by the government to grant to accommodate the public’s access to land would not involve extending access to land that is developed or agricultural lands with the exception of grazing. Granting public access to the countryside would also not be such that it involved interfering in “other legitimate activities”. 39 Therefore some parts of the open countryside would have to be necessarily excluded in terms of public access whether on a permanent or temporary basis.40 Having examined the various responses to the Consultation Paper of 1998, the government came to the conclusion that the public’s gain in allowing access to the countryside exceeded any cost or burdens that landowners would incur. The government considered that costs incurred by landowners would be dismal, particularly with respect to land that was not being utilized for hunting activities. Moreover, damages resulting from vandalism, littering, livestock “worrying” and erosion would be entirely uncommon.41 Based on these considerations the Countryside and Rights of Way Act 2000 (CRoW) was implemented granting the public the right to roam. Countryside and Rights of Way Act 2000 The Countryside and Rights of Way Act 2000 (CRoW) brings into focus significant public interests relative to freedom of access to uncultivated landmarks and brings into focus the limits relative to private ownership of land. Questions surrounding the implications of the right to roam on occupiers’ liability pursuant to the Occupier’s liability Act 1957 where lawful visitors are owed a duty of care by occupiers when exercising a statutory right to occupy the property arise.42 Under CROW, anyone exercising a right of way pursuant to the 1957 Act is not covered by CROW. Thus, arguably trespassers under the Occupiers Liability Act 1984 have more protection than lawful roamers.43 The primary issue was the public interests in special areas of interest and the landowner’s right to exclusive possession.44 CROW confers upon the public the right to roam over registered “common land” and land characterized as “open country” inclusive of mountains, moors, heaths and downland.45 According to Anderson by virtue of CROW: Vast landholdings that were previously shut off from the public, including the downs of Wuthering Heights fame in West Yorkshire and the Moors of Dartmoor, which is currently occupied by the Prince of Wales, are now accessible.46 Access to the countryside and registered common land is allowed for “open-air recreation” only and is subject to restrictions listed in the 2nd Schedule to CROW and any person enjoying the prescribed access damages fixtures on the property or does not comply with the Schedule 2 Restrictions becomes a trespasser.47 Moreover, any person enjoying access may not re-enter the property or any other property owned by the same landowner for at least 72 hours after the first access.48 It is not certain how the frequency of entrants will be determined and how the identity of the entrant will be determined or who damaged fixtures to property or complied with the restrictions listed in Schedule 2, unless the person is caught in the act. Schedule 2 prohibits the use of vehicles or other forms of transportation unless used by a disabled person. Other prohibitions include starting fires, harming animals, using vessels or sailboards “on any non-tidal water”, crimes, destroying or taking nests or eggs, feeding animals, bathing in “non-tidal water”, hunting/trapping/snaring, using metal detectors, taking plants or other vegetation, obstructing drains/watercourse, unreasonable interference with fixtures, leaving written communications, camping/gaming, obstructing other’s enjoyment of access to the land and commercial activities. The only animal allowed is a dog.49 Pursuant to CROW, the Countryside Agency is required to draft and publish a map featuring all the accessible registered common law and points characterised as open country.50 The maps are initially issued as a tentative map51following which landowners may appeal the designated landmarks to the Secretary of State who in turn is required to appoint an inspector to investigating the landowner’s complaint. The inspector may conduct a hearing to determine the case.52 An appeal is only permissible on the grounds that the land included in the map is not “wholly or predominantly of mountain, moor, heat or down.”53 Landowners may not post signs designed to discourage members of the public gaining access to property designated as permissible countryside or registered common land. Any sign posted in contravention of CROW would result in a penal fine.54Anderson notes the CROW does provide for compensating landowners for any misuse of the right to roam or any damages or devaluation of property.55 The rationale for not providing for compensation to landowners has been on the grounds that access is only permitted with respect to land that is not being developed or used for agricultural purposes. Thus granting the public access to land under CROW would not cause landowner’s any appreciable harm.56 In addition, privacy has been demonstratively compromised under CROW. For example, international pop star Madonna and her husband Guy Ritchie, purchased Ashcombe House, in the south of Wiltshire in 2001. The house was near a footpath with public a right of way. In addition the public was granted the right to roam over parts of Madonna and Ritchie’s land pursuant to CROW. The couple filed an objection on the grounds that land was not qualified open country and that granting the public access would contravene their rights to privacy under the ECHR Article 8. An inspector reduced the acreage initially designated open country and determined that the designated open country was sufficiently segregated from the couple’s home to preserve their privacy.57 Anderson argues that CROW represents a “remarkable limitation on the right to exclude”.58 An examination of Article 8 and Article 1 Protocol 1 demonstrates that the right to roam under CROW is primarily a “political” rather than a “constitutional” issue.59 As previously noted, Article 8 and Protocol 1 of ECHR does not confer upon property owners an absolute right to ownership in that private property rights of exclusive possession may be restricted in the public interests. The European Court of Human Rights has interpreted both Article 8 and Protocol 1 as permitting restrictions on the landowner’s use of his/her land, without the need to compensate the landowner provided public interests and landowners’ burdens are fairly balanced.60 Anderson argues that CROW empowered by the exceptions to the protection of property under Article 8 and Protocol 1 of ECHR, represents a significant transformation of private property rights and transfers some rights to “the public”.61 Perhaps more disturbing is the fact that increased public access to the open country could expand the risk of harm to nature. Although CROW limits public access to picnics and hiking activities, there is risk that activities prohibited by CROW may take place particularly since monitoring these activities are difficult and may be even more difficult as public access increases. The Right to Roam in the EU The right to roam in Europe demonstrates the extent to which the public interest has been looked upon as a legitimate expression of the limits of private ownership and the state’s right to interfere in private and exclusive possession of land which should by all accounts be considered common law. In Europe, there are diverse rights to roam the countryside ranging from the landowner’s right to exclusive possession to broad public rights of access. For instance, Sweden’s Allemansratten (the right of public access) permits citizens to “roam and camp in all public and privately owned areas”.62 Members of the public are permitted to hike, ski, ride (bicycles or horses) anywhere in Sweden provided these activities do not take place near homes and “in cultivated areas”.63 In Denmark, the public have access to “field roads and to uncultivated areas” that are not fenced in.64 In the latter part of the 1900s, the number of field roads have been downsized together with meadows, bogs and moors which are the kinds of public access areas legislated. There is now a prevailing culture favouring the private owner’s right to exclusive possession and this culture has operated to restrict any attempt at balancing public interest with private ownership.65 Norway, Outdoor Recreation Act 1957 gives the public’s right of access to the open country. The legislative provision targets the distinction between Scandinavian conventions for automatic public access and private ownership of meadows and fields which now typically characterise contemporary Norway.66 The right of public access is described by statute. For instance, individuals may walk in and on any uncultivated area at will provided they take care not to disturb the land.67 Austria’s Wegefreiheit permits members of the public access to forests on foot but strictly prohibits any activities that might harm the land. Riding horses and bicycles are not permitted. Moreover, camping can only occur with the landowner’s permission.68 In general, Austria provides a general freedom to roam forests. However, restrictions are placed designed to preserve agriculture and nature and the terrain of the Alps.69 France is even more conservative than Austria and more conservative than the UK with respect to conferring upon the public the right to roam the countryside. In France the concept of droit de marche-pied also known as the right to walk along canals and rivers and servitude de passage or a right of way are the main characteristics of the right to roam. France is comprised of 120,000 km in terms of public rights of ways and although much larger than the UK, has 50,000 km less than the UK. Moreover, in France, public access is only applicable to “national parks and nature reserves.”70 Germany’s betretungsrecht provides public access to forests, unfenced land d, coastlines, footpaths and roads. Public access rights include hiking, running, camping, playing, sitting, cycling, horseback riding and the use of wheelchairs and in some parts of the country public access may also include skating and skiing.71 Despite the varied approaches, it can be concluded that the right to roam, at one level or another was recognized throughout much of Europe for quite some time before it was officially recognized in the UK. This practice and tradition generally confirms that the public interests in access to certain land are appropriately protected under the ECHR. Conclusion In the final analysis, the right to roam transforms concepts of private property ownership in a way that presents members of the public as stakeholders in certain lands. However, since landowners assume the burden of taxes and maintenance of their land, it appears to be patently unfair that landowners are compelled to share the benefits of owning certain parts of the countryside with members of the public who are not liable for the upkeep and burdens that run with the land such as taxes. The unfairness is further buttressed by the fact that landowners deprived of exclusive possession and the peaceful enjoyment of their property are not entitled to compensation since the right to roam is not regarded as deprivation within the meaning of Article, Protocol 1 and Article 1 of ECHR. Bibliography Textbooks Burchardt, J. Paradise Lost: Rural Idyll and Social Change in England Since 1800. (London, UK: I.B. Tauris & Co. Ltd., 2002). Cullingworth, J. B. and Nadin, V. Town and Country Planning in the UK. 14th Edn. (Abingdon, Oxon: Routledge, 2006). Gray, K. and Gray, S. F. Land Law. (Oxford, UK: Oxford University Press, 2007). Malloy, R. P. and Diamond, M. The Public Nature of Private Property. (Surrey, England: Ashgate Publishing Limited, 2011). Murphy, J. and Street, H. Street on Torts. (Oxford, UK: Oxford University Press, 2007). McNutt, P. Law, Economics and Antitrust: Towards a New Perspective, (Cheltenham, Glos: Edward Elgar Publishing Limited, 2005). Osborn, G. and Greenfield, S. Readings in Law and Popular Culture. (Oxon, UK: Routledge, 2006). Schack-Nielsen, L. Countries of the World: Sweden. (London, UK: Evans Brothers Limited, 2006). Articles/Journals Anderson, J. L. ‘Britain’s Right to Roam: Redefining the Landowner’s Bundle of Sticks,’ (2007) 19 The Georgetown Int’l Envtil. Law Review, 375-435. Anderson, J. L. ‘Comparative Perspectives on Property Rights: The Right to Exclude’, (2007) 56(3) Journal of Legal Education, 539-551. Anderson, J. L. ‘Countryside Access and Environmental Protection: An American View of Britain’s Right to Roam.’ (2007) 9 Environmental Law Review, 241-259. Bathe, G. ‘Political and Social Drivers for Access to the Countryside: The Need for Research on Birds and Recreational Disturbance,’ (March 2007) 149 International Journal of Avian Science, 3-8. Buckley, C.; Hynes, S. and van Rensburg, T. M. ‘Comparisons between Ireland and other Developed Nations on the Provision of Public Access to the Countryside for Walking – Are there Lessons to be Learned?’ (2008) RERC Working Paper Series, 80-WP-RE-03, 1-33. Escarcena, S. L. ‘Interferences with Property under European Human Rights Law.’(May 2011) Leuven Centre for Global Governance Studies, Working Paper No. 63, 1-29. Gray, K. ‘Land Law and Human Rights.’ Cited in L. Tee (ed), Land Law: Issues, Debates, Policy. (Devon, UK: Willan Publishing, 2002). Hojring, K. ‘The Right to Roam the Countryside – Law and Reality Concerning Public Access to the Landscape in Denmark,’ (March 2002) 59(1) Landscape and Urban Planning, 29-41. Hougie, D.J. P. and Dickinson, J. E. ‘The Right to Roam – What’s in a Name? Policy Development and Terminology Issues in England and Wales, UK.’ (September/October 2000) 10(5) European Environment, 230-238. Kissling-Naf, I. and Bisang, K. ‘Rethinking Recent Changes of Forest Regimes in Europe Through Property-rights Theory and Policy Analysis.” (November 2001) 3(3-4) Forest Policy and Economics, 99-111. Messenger, T. ‘Icon of the Month.’ (November 2004) Third Way, 28. Sandell, K. ‘Access Under Stress: The Right of Public Access in the Swedish Tradition.’ Cited in McIntyre, N., Williams, D. and McHugh, K. (Eds). Multiple Dwelling and Tourism: Negotiating Place, Home, and Identity. (Oxfordshire, UK: CABI Publishing, 2006). Smith, H.E. ‘Property is Not Just a Bundle of Rights.’ (September 2011) 8(3) Econ Journal Watch, 279-291. Weinar, L. ‘Original Acquisition of Private Property,’ (October 1998) 107 Mind, 799-820. Official Papers Department of the Environment, Transportation and the Regions of Great Britain, ‘Access to the Open Countryside in England a Wales: A Consultation Paper,’ (February 1998) Deposited Paper 3/6096. House of Commons Library, ‘Right to Roam Bill’, (2 March 1999) Bill 16 of 1998-1999, Research Paper 99/23: 1-25. Cases Baner v Sweden App. No. 11763/85. Belfast Corpn v O.D. Cars Ltd. [1960] AC 490. Buckley v United Kingdom (1996) 23 EHRR 101. Clunies-Ross v Commonwealth of Australia [1984] 155 CLR 193. Handyside v UK (1976) 1 E.H.R.R. 737. Holy Monasteries v Greece A/301-A [1995] 20 E.H.R.R. 397. Godmanchester Town Council) v Secretary of State for the Environment, Food and Rural Affairs; R (Drain) v Same [2007] All ER 201. Marckz v Belgium[1980] 2 EHRR 330. Minister of State for the Army v Dalziel [1944] 68 CLR 261. Neimetz v Germany [1993] 16 EHHR 97. Papamichalopoulos v Greece [1993] 16 EHRR 440. Planning Inspectorate, Appeal Decision, CROW/3/M/03/1076 (17 June 2004) 4-5. Statutes Countryside and Rights of Way Act 2000. European Convention on Human Rights 1950. Forest Act 1975 (Austria). Highways Act 1980. Occupier’s liability Act 1984. Occupiers Liability Act 1957. Outdoor Recreation Act 1957 (Norway). Town and Country Planning Act 1990. Read More